Category: Arms Sales

Event Recap, Resources and Recommendations -- War in Ukraine and Impact on Arms Trade and Militarism: South East Europe and the Black Sea Region (August 18, 2022)

8/23/2022

On August 18, 2022, the Forum on the Arms Trade and the Platform for Peace and Humanity co-hosted an event examining the actions and dilemmas faced by countries in South East Europe and the Black Sea Region in part due to the war in Ukraine, with panelists:

Zaur Shiriyev, Analyst, South Caucasus, International Crisis Group
A. Sencer Gözübenli, Balkan Studies and Foreign Policy Analyst (Croatia-based), Åbo Akademi University
Esra Serim, Independent Researcher

Panelists provided the following observations, recommendations and resources, building off of their comments during the event.*

Zaur Shiriyev, Analyst, South Caucasus, International Crisis Group

South Caucasus

Recommendations:

In Azerbaijan, major legislation like the National Security Concept (2007) and the Military Doctrine (2010) is outdated and do not include provisions for parliamentary oversight as well as civil society’s oversight and involvement in security sector reform. Azerbaijan’s military doctrine and national security concept must be updated in the near future.
The main goal of Armenia after the 2020 war seems to be the redefinition of its defense concept and security strategy and rebuilding of the army. For this purpose, the country's policy on the purchase of military weapons should be more transparent (like Georgia) and should include short-term and long-term plans. This need for transparent military procurement policy and long-term planning is also valid for Azerbaijan.
Russia's invasion of Ukraine requires a revision of the security strategy in all three countries and makes it necessary for all three countries to carry out security sector reforms more quickly and effectively, taking into account the new realities.

Suggested resources:

Michael Lambert, “The Revival of the Georgian Armaments and Defense Industry,” Russian International Affairs Council, November 8, 2021.
David Darchiashvili, “Georgia: A hostage to arms”, Saferworld, 2004.
“Georgia outlines defence procurement priorities,” Jane’s Defence, July 26, 2021.
“A difference of five times: Military spending of Armenia and Azerbaijan in numbers,” fact investigation platform, May 25, 2022.
Elkhan Mehdiyev, “Security Sector Reform in Azerbaijan: Key Milestones and Lessons Learned,” Geneva Centre for Security Sector Governance, May 2021.
Lt. Col. Edward J. Erickson, “The 44-Day War in Nagorno-Karabakh:Turkish Drone Success or Operational Art?” Military Review, August 2021.
Ulkar Natiqqizi, “After war victory, Azerbaijan keeps increasing military spending,” Eurasianet, May 12, 2022.
“Nagorno-Karabakh: Seeking a Path to Peace in the Ukraine War’s Shadow”, International Crisis Group, April 2022.
Robert Aydabirian, Jirair Libaridian and Taline Papazian, "A WHITE PAPER: The Karabakh War of 2020 and Armenia’s Future Foreign and Security Policies," 2021.

A. Sencer Gözübenli, Balkan Studies and Foreign Policy Analyst (Croatia-based), Åbo Akademi University

Balkans

Assessment:

The Russian invasion of Eastern Ukraine and Crimea in 2014 showed that conventional warfare in Europe was not over. Serbia is the first to take its place in the arms race in the region. Between 2015 and 2021, Serbia’s defence budget jumped by around 70% to close to $1.4bn a year. During that time, its neighbors tried to restore their armed forces.
Russia mentions Bosnia and Kosovo while threatening Ukraine and/or the international community both before and during the invasion in 2022. While this situation causes uncertainty in the Balkans, it also causes concerns about Russia taking the war further to the West, encouraging the parties to engage in arms trading.
While the rhetorical commitment to preventive diplomacy and action may still be high in the international community, in less stable countries in the Balkans, especially in Bosnia and Herzegovina, organizations have done little to create a functional conflict prevention regime at the country’s regional level. That’s also because the commitment to its implementation at the domestic level is very weak. There’s very limited coordination between Bosnian state and the international community. There are “Putin-backed separatists” in the Bosnian federal institutions. The increase in international troops in Bosnia and Herzegovina is a very limited one. Their number remains symbolic.
Same for Kosovo. Kosovo is urging NATO and the EU to admit Balkan applicants to avoid a second European front with Russia. But the international community and the EU elites are sharing posts about Kosovo’s commitments on the EU integration process.

Recommendations:

Cooperation efforts between the Balkan states should be supported by the international community. This can be achieved through isolated but EU-backed thematic projects such as the Three Sea’s Initiative or the Open Balkans (with Kosovo), although support should be sensitive to political tensions. This may narrow the sphere of influence of external actors that threaten the stability of the region, such as Russia, China and Erdogan's Turkey, which are also arms dealers.
Continued efforts to support journalism and protection of journalists, chiefly through small grants and funding should continue and increase. Thematic journalistic grants relating to tracking and monitoring arms trades in the region should be considered by donors.
NATO and EU military peacekeeping presence in the Balkans should not increase in just numbers, but in quality and effect, working closely with both officials and civil society in Bosnia and Kosovo.
The EU should communicate more clearly its intentions with the Western Balkans.

Suggested resources:

Ishaan Tharoor, "Russia’s war in Ukraine finds echoes in the Balkans," Washington Post, August 1, 2022.
Filip Ejdus, "Policy Brief on the Spectre of an Arms Race in the Western Balkans," Institute for Peace Research and Security Policy, University of Hamburg, March 2020.
Vuk Vuksanovic and Marija Ignjatijevic, ““What’s Behind The Arms Buildup In The Balkans,” War on the Rocks, December 28, 2021.
"EU isolationism leaving dangerous power vacuum in Balkans, warns major new report on the arms trade," review of Tactics Institute for Security and Counter Terrorism report, June 15, 2020.
Stephen Blank, "Can Selling Weapons to Serbia Create Peace in the Balkans?" National Interest, September 26, 2021.
Special investigation series on Balkan Arms Trade by Balkan Insight

Esra Serim, PhD, France-based independent researcher

Turkey

Assessment:

To preserve Erdogan’s rule, the Turkish administration continued to pursue ambiguous and unreliable foreign policy and investing more in the defense sector. It wants to turn the country into a major arms exporter, which is also Erdogan’s personal ambition.
The fact that Turkey turned from democracy and the West and into an authoritarian regime leads to increasing the distrust in the eyes of the West. The West also questions a non-democratic Turkey, which began to set a high record in the military sector.

Recommendations:

The Erdogan regime must stop making militaristic foreign policy and supporting nationalist ideology to ensure his power at home. Turkey should not get involved into any conflict, including in Syria and Libya in the Middle East and the Caucasus. Ankara should stop taking up arms given Greek tensions and the interventions in Syria and Libya.
The Biden administration should temporarily block military export and projects including the F16 fighter jets as long as Ankara is governed by the Erdogan regime and dismantles democratic norms or does not restore democratic rule in Turkey. A NATO member cannot purchase and use both Russian and US military equipment and/or aviation. Turkey ignored US warnings not to purchase Russia’s S-400 missile defense system, which is incompatible with NATO systems.
Given the Russian threat, however, both the United States and the EU need better relations with Turkey despite Erdogan’s political actions. They should work to convince him to restore Turkish democracy and liberalization, and not to intervene in any neighboring country. In addition, the West should not ignore Turkey’s security concerns in NATO. They should also encourage Erdogan to keep shut the passage to the Black Sea for military vessels through the Turkish Straits, which is very crucial to Ukraine and the course of the war.

Suggested resources:

“Drones and Resets: The New Era of Turkish Foreign Policy”, Baku Dialogues, Summer 2022.
“Turkey’s Unpromising Defense Industry,” Carnegie Endowment, October 9, 2020.
“Turkey’s Growing Foreign Policy Ambitions,” Council on Foreign Relations, June 29, 2022.
“Why the West Should Make Peace with Erdogan Now,” Foreign Policy, June 22, 2022.
“Turkey’s Foreign Policy Becoming Alarmingly Militarized,” Al-Monitor, September 21, 2020.
“Understanding Turkey’s Increasingly Militaristic Foreign Policy,” APSA MENA Politics, November 10, 2020.

* Panelists at this event do not necessarily endorse the views and opinions of others, nor does the Forum necessarily endorse the views and opinions of others. Please feel free to contact panelists directly for additional conversation.

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U.S. Arms Sales Restraint in 2022?

1/6/2022

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This is the second blog post in a series looking at an array of issues in 2022 related to weapons use, the arms trade and security assistance, often offering recommendations.

Jeff Abramson

Looking at what is often the most common metric of arms sales intention and volume -- notifications of potential government-to-government Foreign Military Sales (FMS) -- the Biden administration at first blush appears to be exercising restraint in the arms trade. FMS notifications made to Congress in calendar year 2021 totaled just over $36 billion, the lowest annual amount since 2011 and second lowest since FMS grew sharply in 2006.

(See dedicated spreadsheet on 2021 FMS notifications here (see all 3 tabs), which was created using the spreadsheet linked to the Forum's resource page.)

While the 2021 total is the lowest in a decade, there are still many problematic sales on last year's list. Top of mind is the one that raised the most attention -- the $650 million November notification of 280 air-to-air missiles to Saudi Arabia. The administration argued that those weapons could not be used for "offensive" purposes and therefore were in line with its human rights goals, especially as related to avoiding harm to civilians in Yemen. Nonetheless, a majority of the President's party voted (unsuccessfully) to block the sale in the Senate last month, with many arguing that providing weapons to oppressive regimes serves to legitimize them, regardless of whether you consider weapons offensive or defensive.

Those arguments can and should also be applied to others on last year's list, perhaps most noticeably the Philippines, where the administration told Congress it wanted to sell F-16s, Harpoon and Sidewinder missiles valued at more than $2.5 billion to the oppressive Duterte regime. Scrutiny is also rising on countries that have in the past been less controversial, such as Israel and India, for which there were FMS notifications as well as human rights concerns.

It's Not Just Foreign Military Sales (FMS)

FMS itself also does not tell the full arms sales picture, which appears to be increasingly comprised of company-initiated Direct Commercial Sales (DCS) that are much less transparent to the public. The May scandal of JDAMs on offer to Israel during a flare up of conflict in which civilian areas were bombed was via the DCS program. Part of the controversy was that a Congressional leak was needed to raise awareness of the potential deal, in part because DCS notifications are not shared on a convenient website, whereas FMS notifications are.

The State Department arms sales factsheet from January 2021 indicates both the scale and relative lack of information we have on the DCS program. It details that in fiscal year 2020 more than $124 billion in DCS licenses were authorized, but only $38.5 billion of which were notified to Congress. (In the latest factsheet, released last month, the Biden administration provides even less clarity, removing details about how much of the $103.4 billion fiscal year 2021 DCS approvals were notified to Congress.)

There is also a billion dollar request for Israel's Iron Dome program supported by the administration, assistance to Egypt that the Biden administration did not fully withhold, and $20+ billion F-35 and drones sales to the UAE that raise the question of how much restraint this administration will support.

New Policy Anticipated

As soon as this month, we expect the Biden administration to unveil a new conventional arms transfer policy that was previewed in part in November. At that time, Tim Betts, the Principal Deputy Assistant Secretary of State for the Bureau of Political-Military Affairs, said the policy will "seek to elevate human rights, stress the principles of restraint and responsible use." That is certainly welcome. In all likelihood, however, the new policy will follow earlier ones in that the list of reasons to engage in weapons transfers will not be weighted. Those looking to argue for commercial interests will find language they want, and no indication that human rights have a higher priority. How the administration actually implements the policy will likely be more telling than the words in it.

An initial follow-on step should be for the Biden administration to recommit to the U.S. signature to the Arms Trade Treaty. President Trump’s repudiation of the one global treaty that establishes baselines for responsible trade of broad categories of conventional weapons, and which is already consistent with U.S. law, is a stain on U.S. international credibility and inconsistent with shared goals.

More to Watch

Getting this right is not easy, of course. But if the United States, the world’s largest weapons provider by far, actually wants to show arms transfer restraint, it needs a consistent approach to existing or future conflicts that moves away from adding more weapons to volatile situations. It must find ways to engage the Middle East and elsewhere through commercial ties, cultural and academic connections, and other approaches. And in many cases, especially in pulling back, it will need to increase and enable humanitarian assistance to those places impacted by war. The withdrawal from Afghanistan, while a positive for those supportive of a less militarized approach, has not been followed by a humanitarian response sufficient for the suffering country.

Nor has aid that would help those in Yemen been able to reach them, in part because the United States has not truly used its full power to demand that the blockade on the country be immediately ended. In Yemen, the Houthi are no saints. They have committed horrible abuses. U.S. leverage and complicity, however, is tied much more closely to Saudi Arabia, for which the U.S. continues vital aircraft maintenance support, and to the UAE, which despite claims of exiting the war is still engaged via proxy groups and control of the Socotra island.

Even more than relations with Saudi Arabia, that with the Emiratis may be most telling on potential U.S. arms restraint in the coming months and years. In December, the UAE threatened to walk away from the massive F-35 deal. The administration has consistently said it wants to make the deal work, but has insisted on publicly unspecified end-use and other conditions. In my close reading of the comments by State Department and Defense Department officials last month, it’s unclear that human rights and civilian protection concerns are being raised at all with the Emiratis. That must change.

Finally, Congress may also play a role. A wide array of legislation has been introduced that would impact on arms trade restraint should it be adopted. A short, but incomplete, list includes the progressive Stop Arming Human Rights Abusers Act introduced by Rep. Ilhan Omar; the SAFEGUARD Act, led by the influential chairs of the House Foreign Affairs and Senate Foreign Relations committees; and the bipartisan National Security Reforms and Accountability Act/National Security Powers Act that would “flip the script” and require Congressional approval on many arms sales -- similar to an approach once introduced by then-Senator Joe Biden in the 1986.

Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade

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Comments - U.S. Arms Exports Under Congressional Notification Thresholds

9/30/2021

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On September 30, 2021, the Forum launched a new resource page for sharing an understanding of law and practices, case studies, potential research avenues and a variety of recommendations related to arms exports that are below Congressional notification thresholds (or simply not required). We welcome additional information, suggestions, and commentary here.

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Judicial Review redux in the UK over sales to Saudi Arabia and Coalition

1/6/2021

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This is the third blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Sam Perlo-Freeman

It seems like we’ve been here before. This year, the Campaign Against Arms Trade (CAAT) hopes to take the UK Government to court, seeking a Judicial Review over its decision last July to continue arms sales to Saudi Arabia and its coalition allies in the war in Yemen, in spite of the devastating human toll exacted by that conflict, and the overwhelming evidence of gross and repeated violations of International Humanitarian Law (IHL) by the Coalition.

Didn’t CAAT just win a case like this a year or so ago? Yes, indeed.

The story so far: In June 2019, the Court of Appeal, overturning a previous High Court decision, ruled that the process by which the government made decisions on export licences to Saudi Arabia for use in Yemen was “irrational and unlawful”. Specifically, Criterion 2c of the government’s Consolidated Criteria on arms exports states that an export licence shall be refused if there is a “clear risk” that the equipment “might be used” for serious violations of IHL. Yet, the government had not even attempted an assessment of past patterns of violations of IHL by Saudi Arabia and the Coalition. Instead, it had relied on its ongoing engagement with and training of the Saudi government and military to conclude there was no “clear risk”.

The Court of Appeal rejected this absurd position, that a previous record of violations was irrelevant to an assessment of future risk, and the government had to stop issuing new licences to Coalition states for possible use in Yemen, and to retake all past licencing decisions on a lawful basis. (However, existing licences, including indefinite Open General licences, were not cancelled, allowing BAE Systems’ extensive support for the Saudi Air Force to continue unabated).

A year later, in July 2020, the government announced that it had completed its review, and concluded that all was well, there were only a “small number” of possible violations of IHL among all the hundreds of incidents assessed, and that these were “isolated incidents” that did not constitute any “pattern”. Therefore, there was indeed no “clear risk” of future violations, and that arms sales could continue without any concern for the potential civilian toll this might exact.

It is this latest decision that CAAT is challenging. The idea that there have only been a “small number” of violations of IHL flies in the face of a huge body of evidence from UN experts and Yemeni and international NGOs. These organisations have used highly rigorous methodologies and sources, and have access to on-the-ground witnesses, which the UK government does not. The evidence includes repeated bombings of residential areas, schools, hospitals, market places, agricultural targets, and many others, usually with no evidence of any nearby military target . According to the Yemen Data Project, almost a third of the thousands of Coalition air strikes since the bombing began in 2015 have struck civilian targets. The “patterns” of violations are plain to see.

The government have provided only the barest outline of how they have reached these, on the face of it, absurd conclusions. They have not said what constitutes a “small number” of cases, or what they mean by a “pattern”, only that the incidents occurred “...at different times, in different circumstances and for different reasons”.

The next stage of this saga – which started with CAAT’s initial application to the High Court in 2016 – is for CAAT to seek permission for a new Judicial Review - “JR2” - of the government’s review of licencing in response to CAAT’s victory in the original Judicial Review. This starts again with the High Court, and could yet go all the way to the Supreme Court. (For those not familiar with the UK court hierarchy, check this). While the full Grounds of CAAT’s application are subject to legal confidentiality, the basic premises are straightforward:

1) We challenge the conclusion that there are only a “small number” of cases of violations of IHL, based on the huge volume of evidence above.

2) We likewise challenge the conclusion that there is no “pattern” of violations.

3) We argue that, even if there were no “pattern”, this would not be sufficient to conclude that there is no clear risk of future violations. Even a single incident could constitute a serious violation of IHL, and there can very well be a risk of further “isolated” incidents even so.

Since we know so little about the government’s methodology, or even the details of their conclusions, which they say must be kept secret for reasons of national security, we have no idea what evidence the government may or may not have to support its conclusions. If we are granted permission for JR2, most of this evidence will have to be heard in Closed session, where CAAT will be represented by security-cleared Special Advocates, who cannot disclose the content of the sessions to CAAT or our regular lawyers.

We do not know, therefore, what secret evidence the government might bring to these closed sessions in an attempt to justify their conclusions. But we find it hard to believe that there is anything that could reasonably gainsay the vast weight of evidence from so many credible and respected sources.

The way it appears to us is that, whatever the evidence, and whatever courts have said about previous decision-making processes, the government is determined to find a way to interpret things that allow them to maintain its relationship with the UK’s overwhelmingly largest arms customer, Saudi Arabia, whatever mental and legal gymnastics this may require.

We hope that the courts will exhibit similar scepticism. The government must respond to our Grounds for Judicial Review by January 22nd, after which the High Court will decide if, on the basis of these submissions, we have a case. If not, we may still seek a hearing to decide if the case may proceed. If JR2 does get the go-ahead, it will be months yet before it comes to court.

The case, as they say, continues.

Sam Perlo-Freeman is Research Coordinator at the Campaign Against Arms Trade.

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Early Actions to Watch for a More Responsible U.S. Arms Trade Policy

1/4/2021

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This is the first blog post in a series looking at an array of issues in 2021 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Jeff Abramson

We should know almost immediately if the next U.S. administration will take a more responsible approach to the arms trade. That's because a 30-day Congressional review period on the sale of 7500 precision-guided munitions to Saudi Arabia will end just after the expected January 20 inauguration of the next President. At that point, the new Biden administration would be able to issue licenses for the sale (unless Congress quickly takes blocking actions before then). If Biden keeps to expectations, he will not issue those licenses. That would be consistent with his October 2 pledge:

Under a Biden-Harris administration, we will reassess our relationship with the Kingdom, end U.S. support for Saudi Arabia’s war in Yemen, and make sure America does not check its values at the door to sell arms or buy oil.

If Biden truly wants to uphold values and make U.S. weapons recipients accountable for their actions, his administration could also take steps to slow and suspend major weapons sales to the United Arab Emirates. Less than a month ago, nearly all the Democrats in the Senate made clear their opposition to much of a $23 billion arms package to Abu Dhabi that the Trump administration is attempting to rush forward in its closing days. The UAE, which remains a key partner in the Saudi-UAE coalition in Yemen and is violating the UN arms embargo on Libya, simply should not be receiving U.S. arms at this time.

At present, there is not a clear indication from the incoming President on what he will do with these time-sensitive sales. Whether any of the necessary letters of offer and acceptance (LOAs) have been signed with the UAE that would put contracts in place is not clear, despite Trump administration efforts to move ahead. If not, Biden can delay concluding them. If some LOAs are signed, he can also hold off on delivery, especially for armed drones, precision-guided and other munitions that could be transferred most quickly. While the Abraham Accords offer great promise for improving regional relations in the Middle East, the reward for the accords should be peace and a lessening of prospects for conflict, not the influx of tens of billions in new weaponry.

How the U.S. approaches arming yet other countries in the Middle East, including Egypt, Israel, Qatar, Bahrain and more, will be closely watched as the Biden team has indicated a desire to rejoin the Joint Comprehensive Plan of Action (a.k.a. the Iran nuclear deal). Fueling regional arms races could make that more difficult.

Biden has also promised to reverse the Trump administration policy that transferred export oversight for semi-automatic and many other small arms to the Commerce Department, which ended Congressional transparency into such sales. Quick steps to return to the previous policy would also show his administration seeks a more responsible arms trade approach.

As the Obama presidency was nearing its end in late 2016 and early 2017, his administration held back on weapons sale to Saudi Arabia, Bahrain, and Nigeria that the Trump administration later moved forward. It will be promising if Biden renews concerns about arms sales to many regimes with highly problematic human rights records that Trump has supported, including to the Philippines (amongst a long list of countries).

Even more telling would be actions to again support the Arms Trade Treaty. An easy early first step would be for the Biden administration to retract the letter Trump sent to the United Nations in 2019 that denied legal obligations from the United States' 2013 signature. Further efforts to honor U.S. signature to the ATT, including to seek ratification of the treaty (as embedded in the 2020 Democratic party platform), may take longer but would also show U.S. dedication to again align itself with nearly all its allies in promoting global norms on responsible arms trade.

Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade

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Taking Stock and Looking Ahead for Responsible Policies on U.S. Arms Sales

1/13/2020

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This is the eighth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Shannon Dick

During the last three years, the United States’ approach to conventional arms sales has been characterized by its transactional nature and focus on short-term objectives. In this environment, the Trump administration has repeatedly challenged key tenets of U.S. arms transfer laws and policies, resulting in increased arms sales to countries of concern. At the same time, Congress has increasingly spoken out about U.S. arms sales decisions, leading to greater examination of and public discourse on the opportunities and, importantly, the risks presented by certain arms transfer decisions. Given these dynamics, the upcoming year presents an opportunity to reevaluate how the United States engages in the global arms trade and identify ways to ensure greater responsibility and accountability in U.S. arms transfer decisions in the years to come.

During the Trump administration, expediency, special interests, and perceived economic incentives have often come at the expense of long-standing approaches to U.S. arms transfer decisions. In the last year alone, the administration:

Released a fact sheet detailing its implementation plan for the revised Conventional Arms Transfer policy, which places a primacy on economic considerations and assisting U.S. defense industry, and seeks to incentivize arms sales as one response to concerns about great power competition. In so doing, however, the policy and its corresponding implementation plan gloss over considerations of human rights and international law – issues that serve to mitigate the inherent risks of arms sales.
Withdrew America’s signature from the Arms Trade Treaty – the only legal, international agreement that seeks to promote international security and reduce human suffering by regulating the global trade in conventional weapons – in a move that was influenced by and predominately supports special interest groups in the United States, such as the National Rifle Association.
Declared a national emergency to bypass Congress and push through more than $8 billion in arms sales to Saudi Arabia, the United Arab Emirates (UAE), and other countries – thereby continuing a pattern of approving arms sales to countries with known human rights concerns. Members of Congress had previously opposed the sales due to continued human rights abuses and the growing humanitarian catastrophe resulting from U.S.-backed, Saudi-led coalition bombings in Yemen.
Took additional steps to transfer oversight of firearms exports from the U.S. Department of State to the Department of Commerce, which would make it easier for U.S. arms manufacturers to sell their products abroad and increase the risk that U.S. weapons fall into the wrong hands or are used irresponsibly. The move would likely also result in less transparency around arms sales as well as challenge U.S. investigations of illegal arms transfers – among other concerns.

With these activities, the Trump administration has underscored its commitment to boost U.S. arms sales and to do so more quickly. But such an approach risks overlooking important considerations – such as ensuring appropriate end use, protecting against deleterious proliferation, and protecting human rights – and could lead to longer-term consequences for U.S. national security and foreign policy. These trends have already animated some congressional action and may continue to serve as fuel in underscoring the importance of Congress to hold the administration accountable and reassert its role in overseeing U.S. arms sales.

The political environment going into 2020 could present an opportunity to build on the attention and momentum of the past few years and embolden the American public and Congress to take more proactive steps to ensure proper oversight of and responsibility in U.S. arms sales. There are several avenues for improvement within the U.S. arms transfer policy framework, and actions taken this year could help lay the groundwork for establishing more robust, responsible, and accountable policies in 2021 and beyond.

In general, 2020 provides an opportunity to ensure that U.S. arms sales to foreign governments better align with those governments’ legitimate needs and capacities, as well as U.S. national security and foreign policy interests. For example, a recipient’s past behaviors could be taken into consideration when reviewing potential arms transfers in order to better safeguard human rights and mitigate potential harm. Additionally, Congress could pass legislation to restrict or prohibit future sales to countries such as Saudi Arabia and the UAE in light of the ongoing war in Yemen, as well as revise the procedures for considering and reviewing arms sales for all countries engaged in conflict. In addition, greater articulation and explanation of the Trump administration’s Conventional Arms Transfer Policy and implementation plan could help identify gaps in current policy and practice in order to better safeguard U.S. arms transfers. And finally, members of Congress could strengthen existing legislation by requiring the administration to report on potential violations of U.S. arms export laws. Such steps could ultimately serve to better inform the American public of the processes and risks involved in U.S. arms sales around the world.

Shannon Dick is a research analyst at the Stimson Center

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Looking ahead – the arms trade on trial in the UK and The Hague

1/6/2020

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This is the fourth blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

The views expressed are those of the author and not necessarily those of Campaign Against Arms Trade.

Samuel Perlo-Freeman

Last year, Campaign Against Arms Trade (CAAT) won a legal victory against the UK Government in the Court of Appeal, which overruled a previous High Court judgment, and declared the government’s approach to evaluating export licenses for arms sales to Saudi Arabia to be “irrational and therefore unlawful.”

Criterion 2(c) of the EU Common Position on arms exports, which is also written into UK law (and therefore will likely remain after Brexit), states that an export license for military equipment shall not be issued if there is a “clear risk” that the equipment might be used to commit serious violations of International Humanitarian Law (IHL). CAAT had challenged the government’s continuing approval of export licenses for combat aircraft, bombs, missiles, and other equipment used in the Saudi-led war in Yemen, on the basis of the multiple, repeated attacks by the Saudi-led Coalition on civilians and civilian objects, documented by the UN and numerous NGOs with on-the-ground information, which CAAT’s lawyers argued surely meant a clear risk existed of further violations using UK weapons. The Government had argued that their close relationship with the Saudis, their knowledge of Saudi targeting procedures, and the training they provided, ensured that no clear risk existed; indeed, they had not made any assessment of the many hundreds of incidents of attacks on civilian targets of which they had been made aware, to decide if any of these were likely to be violations of IHL.

The judges ruled that any rational assessment of future risk must include as a crucial piece of evidence an assessment of past record. They ruled that the government must retake all extant export licensing decisions for equipment to the Saudi coalition, based on a lawful procedure. Until this review is complete, the government has agreed not to issue any new licenses for equipment that could be used in Yemen. The government has been granted leave to appeal to the UK Supreme Court, but has not been granted a stay of the judgment pending this.

There are therefore two major developments in this case to be anticipated in 2020: the Supreme Court hearing and judgment, and the results of the government’s retaking of export licensing decisions.

How the Supreme Court will view this case it would be pointless to speculate. As for the review of licensing, there are many possible outcomes, each of which might lead to different courses of action for those seeking to stop arms sales from fueling the Yemen war, and other conflicts worldwide. Some that come to mind include:

The review could find that there has indeed been a pattern of violations of IHL by the Saudi-led coalition that means that there is a clear risk of future violations, resulting in the revoking of licenses for most or all equipment supporting the Coalition’s air war, and a future presumption of denial. This would be both fantastic and unexpected, and seems highly unlikely – much of the UK arms industry, BAE Systems in particular, is heavily dependent on exports to Saudi, and the government is unlikely to be willing to see this business terminated, including the huge servicing contracts BAE has with Saudi Arabia, supported by 6,300 employees in the Kingdom. BAE has received £29 billion in revenue from the Saudi Ministry of Defence (MOD) between 2009 and 2018 from sales and services, and the loss of this would be devastating to the UK’s “national champion,” whose interests carry huge weight in government policy-making.
The review could conclude that there is no clear evidence of serious violations of IHL by the Coalition, and hence no clear risk of future violations, and thus continue to approve all licenses. This is certainly a possible outcome that would allow the government to achieve its objectives, but might be seen as too lacking in credibility to sustain, in particular in the face of potential future challenges.
The review could find evidence of some violations of IHL, but conclude that this does not amount to a recurring pattern, so that there is still no clear risk, allowing most or all licenses to continue as before.
The review could conclude that there has indeed been a pattern of serious violations of IHL, and that some previous licenses should not have been issued, leading to some being revoked; but that subsequent changes in Saudi policy, working with the UK government, combined with the lowering in the tempo of the air war that has been observed over 2019, means that there is no clear future risk, so that new licenses can be issued, subject to continual careful monitoring of Coalition actions.

In the event of any outcome other than a complete halt to arms sales for use in the Yemen war, CAAT and other interested parties will need to look carefully at the basis on which the conclusions were reached – in so far as it is possible to know them – and consider whether there might be grounds for further challenge. On the other hand, any outcome that concludes that previous licenses should not have been granted, on the basis of the record of IHL violations (such as 4), could open the way to looking more closely at other cases where the UK has issued licenses for arms sales to conflict parties; for example, to Turkey during their conflicts with Kurdish forces in Turkey and Syria (though the issuing of new licenses to Turkey are currently suspended), or even to the US for components and subsystems used in their many ongoing wars around the world, including drone wars, where their observance of IHL is open to severe doubt.

Meanwhile, another legal effort to hold both governments and arms companies to account is under way in the Hague: on December 11, the European Center for Constitutional and Human Rights (ECCHR), in collaboration with Mwatana for Human Rights in Yemen, CAAT, Amnesty International, Centre Delás in Spain, and Rete Disarmo in Italy, submitted a 350-page Communication to the Office of the Prosecutor (OTP) at the International Criminal Court, asking the OTP to investigate both senior government officials in the UK, France, Germany, Italy, and Spain, and senior corporate officers of nine companies headquartered in these countries, for their potential criminal responsibility for aiding and abetting war crimes in Yemen through the supply of arms. This is a unique effort up to now, in seeking to establish the liability of corporate actors for their role in supporting war crimes through the supply of arms. The Communication challenges companies’ defense that they only supply arms where they have an export license on numerous grounds: for one thing, international principles on business and human rights expect companies to go beyond the minimum requirements of national legislation in seeking to prevent their business activities from having negative impacts on human rights, and this should be even more so in the case of the arms industry, whose products are designed to kill. Secondly, the granting of an export license does not entail an obligation to export, so that the company cannot evade responsibility to conduct their own due diligence; moreover, an export license may be valid for years, so that the situation at the point of delivery may not be the same as at the time the license was issued.

The file is now with the OTP. ECCHR and their partners hope that they will at the very least give the case serious consideration, and that this may even lead to the opening of a Preliminary Examination in 2020.

The road to any prosecutions would be a long one; however, so long as this file remains open, it may be hoped that the potential for personal criminal liability may have a cautionary effect on decision-makers in evaluating export decisions, whether from the government or corporate side, encouraging more rigorous scrutiny of whether there is indeed a “clear risk” of equipment being used for war crimes or other serious violations of IHL.

However, returning to the UK, there is one dark cloud on the horizon regarding CAAT’s efforts to hold the government’s export licensing policy to account through the courts. The Conservative Party manifesto for the election that returned the party and Prime Minister Boris Johnson to power for the next five years included a paragraph that has alarmed civil society and others concerned with the rule of law, promising to review the whole nature of the relationship between government and the judiciary, including restricting the possibility of seeking judicial review; this will still be possible for individuals whose rights are trampled by an “overbearing state,” but not as a way of “conducting politics by other means.” This is probably primarily aimed at the sort of case that saw Boris Johnson’s prorogation of Parliament struck down in a scathing ruling by the Supreme Court in September, but may well also target cases such as CAAT’s.

On the other side of the Atlantic, in the Canadian province of Ontario, right-wing Conservative Premier Doug Ford passed a similar law in 2019, the Crown Liability and Proceedings Act, severely restricting the ability of Ontarians to sue the Provincial Government. Moreover, the law applies retroactively, and on the basis of this, the Ontario government is seeking to have eight previous class action suits against it – which the government had already lost, through all stages of appeal – thrown out. Given the Johnson government’s track record in terms of its respect for the rule of law (or lack thereof), it is not hard to imagine them pursuing a similar course in the UK, in spite of its flagrant violation of constitutional norms.

Could the UK government, if it loses in the Supreme Court, still try to have the case canceled by such means, and allow arms sales to Saudi Arabia to continue even after they have been shown to violate the UK’s arms export laws? We can only hope not, but it is not something that can be ruled out.

Sam Perlo-Freeman is research coordinator for the Campaign Against Arms Trade.

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Arms Trade Issues Should See Center Stage in 2020 US Election

12/13/2019

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This is the first blog post in a series looking at an array of issues in 2020 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Jeff Abramson

The "should" in the title to this post is not an admonition, but rather a prediction. And a bold one. An impeachment effort is now underway related to conditions placed on security assistance to Ukraine. Plus, four Presidential vetoes were used in 2019: one to stop Congressional assertion of war powers in relation to the war in Yemen, and three to override rejection of "emergency" arms sales primarily intended to Saudi Arabia for that war. So, how could arms trade issues take an even greater public stage in 2020?

It's the election. As the 2020 campaigns kick into full gear, we should expect that those vying for the highest elected office will look for more areas where they can assert their differences with the President, especially on issues that the public supports. As the Forum's research into candidates positions is showing, there is a stark divide emerging in the approach Democratic candidates are taking on arms trade issues compared to Donald Trump. And opinion polling suggests many of these have a majority of Americans behind them.

At this moment, the divide is most striking as relates to support to Saudi Arabia. Of the seven Democratic candidates slated to appear in the December debate, six have indicated that they would cut off arms supplies to Saudi Arabia given Riyadh's behavior in the war and humanitarian crisis in Yemen. (Tom Steyer's position is unclear.) While public opinion polling highlighted by the Chicago Council of Global Affairs indicates that Americans are divided on the US relationship with Saudi Arabia, a majority, regardless of party, do believe selling weapons makes the United States less safe. It is easy to see, and unfortunately tragic to predict, that another incident of misuse of US weapons by the Saudis will occur and make it into the headlines. With it will come attention again to US arms trade decisions.

Also at odds with the President, all the Democratic candidates have indicated their support for an assault weapons ban, another issue that has majority public backing. Thus far, however, Democratic candidates have not made the connection that it is illogical to oppose assault weapons at home while at the same time making their export more efficient. While the administration is pushing for just such changes, it is easy to expect more gun control-minded Democratic candidates to make the case that the Commerce Department is not the proper home for oversight of assault weapon exports. Two have done so thus far. As some members of Congress are already doing, candidates can also make the connection to US gun laws and exports with violence in Latin America that fuels Central Americans to flee north. We quickly then link to the wall and broader immigration debates, driving the arms trade into the brighter spotlight.

It's a bit more difficult to predict that the Arms Trade Treaty (ATT) itself will become an election issue. President Trump's repudiation of the treaty at an NRA convention in Indianapolis in April certainly was popular with the crowd there and echoed the ill-informed stance that Congressional detractors have taken that the treaty infringes on US rights. It would not be surprising that candidates who publicly criticize the NRA would also then take up the ATT. Three have explicitly supported the treaty thus far, and a number others have taken steps in the past to block opposition to it.

Candidates seeking to distinguish themselves from each other may also branch out into issues where positions have yet to be claimed. Public opinion polling shows that a majority of Americans are strongly or somewhat opposed to using lethal autonomous weapons systems in war (aka killer robots). This is an obvious area where a candidate such as Andrew Yang, who comes from the tech field and talks frequently about artificial intelligence, could be the first to also acknowledge where human-centered limits make sense and support efforts such as those led by the growing Campaign to Stop Killer Robots to ban the development and use of such weapons.

Other issues ripe for candidates to explore include declarations on the use of explosive weapons in populated areas, an initiative with increasing international attention that currently lacks US diplomatic support. Treaties such as the Mine Ban Treaty and Convention on Cluster Munitions, that are supported by nearly all of NATO and other traditional US allies, but to which the US has yet to commit, can also provide candidates a way to distinguish themselves.

It is, of course, much too early to predict who will be elected as president roughly 11 months from now. It is, however, a much safer bet that arms trade issues will have a prominent role in the public discourse that leads up to the November 3 vote.

Jeff Abramson is a senior fellow at the Arms Control Association and manages the Forum on the Arms Trade.

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Improved Prospects for U.S. Arms Sales Restraint? Look to Congress

1/3/2019

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This is the sixth blog post in a series looking at an array of issues in 2019 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Jeff Abramson

The odds may at first appear to be against greater restraint in U.S. arms sales in 2019 given a president who loudly touts the supposed economic benefits of weapons sales and refuses to reconsider arms transfers to Saudi Arabia despite (1) the Saudi role in the devastating humanitarian crisis in Yemen and (2) a global outcry over the ghastly embassy assassination of U.S. resident Jamal Khashoggi. But a close examination of Congressional action, much of it building over the last three years, reveals real prospects for limiting the president’s dangerous approach on conventional arms trade.

The most high profile signs of this restraint revolve around the most high profile U.S. arms purchaser, Saudi Arabia. A loud rebuke of Trump’s approach to the kingdom came in December when a bipartisan group of 56 Senators took the highly unusual step of using the 1973 War Powers Resolution to direct the president to end U.S. military action in the war in Yemen, including any refueling to the Saudi-led coalition. An earlier vote in March garnered only 44 votes. The outcry over Trump’s unabashed arms support to Saudi Arabia played a large role in changing many Senators’ minds.

Another War Powers-based resolution should expect to win Senate approval in the new Congress, when it is re-introduced. In the House, the new Democratic majority would also be likely to approve such a resolution. While leader Nancy Pelosi (D-California) has yet to indicate when a such a measure might be brought forward, she is one of 101 co-sponsors of the previous House version, which was blocked by a late procedural action in December.

The War Powers Resolution came on the heels of steps more explicitly addressing the arms trade. In June 2017, 47 Senators voted to block more than $500 million in precision-guided munitions (PGM) sales to Saudi Arabia; and in September 2016, 27 Senators supported stopping a $1 billion tank sale. While neither of these measures were successful, they indicate the building Congressional opposition to unrestricted arms sales to Riyadh. That sentiment was encapsulated after the recent War Powers vote when co-sponsor Chris Murphy (D-Connecticut) said that “momentum is…only growing. Congress has woken up to the reality that the Saudi-led coalition is using U.S. military support to kill thousands of civilians, bomb hospitals, block humanitarian aid, and arm radical militias.”

In addition to these very public votes, some Congressional leaders are acting in other ways to reign in unwise arms sales. Under the U.S. system, leaders within the Senate Foreign Relations Committee and House Foreign Affairs Committee are pre-notified of potential arms sales. That pre-notification period has been the more traditional place for an opposition hold on controversial sales. For a period in 2017, former SFRC chair Bob Corker (R-Tennessee) declared a hold on new arms sales to Gulf Cooperation Council countries. More recently, ranking member Robert Menendez (D-New Jersey) placed a hold on PGM sales to Saudi Arabia and the United Arab Emirates. While Corker is no longer in Congress, Menendez retains his position and his June 2018 hold remains in place. During the recent War Powers debate, he argued that the Trump administration view of the U.S.-Saudi relationship was “unhinged” in thinking that “selling weapons to the Saudis was more important than America’s enduring commitment to human rights, democratic values, and international norms.”

These actions are promising, and creative Congressional leaders have the opportunity to do more. While the public can be an ally for responsible action on Foreign Military Sales (FMS) because such government-to-government negotiated sales are quickly added to a public website, the increasingly important business-led Direct Commercial Sales (DCS) are not as transparent, in part because any public notification often comes after the initial review period has passed. Congressmembers could insist that, or possibly take it upon themselves to make, these potential DCS transactions public immediately. Saudi PGM sales, for example, have come through the DCS process and relied upon concerned leaders to share in raising awareness.

While the notification period garners the most attention, Congress also can block a sale up until weapons are delivered. Given how security, geopolitical, and humanitarian realities can change between the time of notifications and often years-later deliveries, leaders should follow the entire process. To the best of my knowledge, however, the relevant chair and ranking committee members have only once used the power they gave themselves to receive from the State Department a notification of an arms shipment at least 30 days prior to its delivery. It’s time to exercise, and to expand, such authority (see Section 201).

In general, transparency around arms deliveries remains too obscure as a New Hampshire NPR reporter recently discovered. When U.S. Census export data showed weapons worth more than $61 million were sold from his state to Saudi Arabia in August, he could not uncover what was in the sales nor which companies provided the weapons. Annual reports on U.S. arms transfers have grown increasingly opaque. Congress should mandate a change, demanding much greater transparency on the specifics of what is in U.S. weapons deliveries.

Finally, sometime in the first quarter of this year, we can expect the administration to publish final rules transferring export authority on select firearms from the State Department to the Commerce Department, despite a large number of negative public comments and great deal of concern. These rules have been at the heart of the 3-D gun printing controversy that energized public debate in the middle of last year. Members of Congress have raised an alarm that they will lose notifications about these sales, and need to be prepared to stop, or counteract, this dangerous export process change. Just as Trump’s broad approach on arms sales does, these changes risk making it easier for weapons to end up in the hands of terrorists, international criminals, and abusive regimes as well as further undermine the promotion of human rights norms that should be central to U.S. actions.

Jeff Abramson is a non-resident senior fellow at the Arms Control Association and manages the Forum on the Arms Trade.

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Will reckless, risky and wrong-headed UK support for the Saudi-led coalition in Yemen continue?

12/14/2018

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This is the first blog post in a series looking at an array of issues in 2019 related to weapons use, the arms trade and security assistance, at times offering recommendations.

Anna Stavrianakis

The war in Yemen has killed over 57,000 people since March 2015 and created a cholera epidemic and a politically induced, entirely preventable famine. The Saudi-led coalition is causing twice as many civilian casualties as all other forces fighting in Yemen – including the Houthis, who are also responsible for attacks on civilians and on aid and humanitarian actors. Primary support for the Saudi-led coalition comes from the USA; but a crucial junior partner is the UK. The UK government claims to have been at the forefront of international humanitarian assistance, giving more than £570 million to Yemen in bilateral aid since the war began. Yet the financial value of aid is a drop in the ocean compared to the value of weapons sold to the Saudi-led coalition – licences worth at least £4.7bn have been granted to Saudi Arabia and £860m to its coalition partners since the start of the war.

Rejecting responsible action

The UK’s own rules state that it cannot sell weapons to countries where there is a clear risk they might be used in serious violations of international humanitarian law. And the UK claims, repeatedly, to have one of the most rigorous control regimes in the world. Yet evidence of illegal civilian harm in the war is ongoing and growing.

So how does the UK government try to convince itself and others that its arms export policy is not in tatters? First, by batting away extensive evidence of violations of international humanitarian law, claiming it can't be sure they have happened. Despite a risk-based arms transfer control framework that is explicitly preventive in orientation, the UK government demands absolute certainty that its weapons have been misused before it will countenance a suspension – and even then, concerted action to stop weapons sales is not guaranteed. Second, by working with the Saudis to claim that if attacks on civilians have happened, they must have been a mistake. Central to this has been the Joint Incidents Assessment Team (JIAT) – headed by a Bahraini military lawyer who oversaw national security trials of over 300 pro-democracy protestors in 2011. The JIAT has investigated only a small proportion of alleged incidents, and its methodology, sources and case selection criteria remain unclear. Its conclusions have taken the form of blanket denial; admission of limited, accidental civilian harm; and most frequently, a defence of air strikes that it says were carried out in line with IHL. All of these responses are contested by NGOs tracking civilian harm in the war. And third, that any past misuse of weapons doesn’t necessarily mean future misuse is likely. In the judicial review of export policy, a senior civil servant’s evidence stated that “Past behaviour is a helpful indicator of attitude towards IHL and towards future behaviour, but it is not necessarily determinative”. It is difficult to imagine civil servants or High Court judges articulating such a position if they were working in counter-terrorism policy, an issue area that operates on the basis of suspicion, intuition and an absence of evidence.

In these three ways, according to the UK government, while there may be a risk of weapons being misused in Yemen, that risk is not clear. The upshot is an exponential rise in arms sales since the war started, to the point where Saudi Arabia now accounts for almost half of UK arms exports.

Change ahead?

Nonetheless, there may be glimmers of hope for an end to the war in Yemen. The murder of Jamal Khashoggi has generated a crisis in US and UK policy that four years of war have failed to do. While his murder has little to do directly with arms sales, and it is dispiriting that four years of evidence of the misuse of weapons has failed to register in US and UK policy, it has shone a spotlight on the war in Yemen. Pre-talk consultations in Sweden between representatives of the government of Yemen and the Houthis ended on 13th December with an agreement that included a ceasefire in Hodeidah, steps to address the situation in Taiz, and prisoner exchanges. These are tentative, fragile steps that would mitigate civilian harm if adhered to, but still need considerable political effort to translate into an end to the war.

The US Senate has passed two resolutions to halt US involvement in the war and curtail its support for Saudi Arabia – a significant development. The US government has called for ceasefire – which sounds positive but may also be a move to block more radical action from Congress. In the UK, FCO Minister for the Middle East Alistair Burt appeared not to know the US was going to make that call. The UK is making increased efforts to address the humanitarian effects of its own support for the coalition by introducing a draft UN Security Council resolution – but this has been blocked by the US. Domestically, a former defence attaché to Riyadh spoke out about UK complicity through its arms sales in October 2018 – the first acknowledgement of the recklessness of UK policy from the military establishment. And a judicial review of UK policy is ongoing: the High Court found in favour of the government in July 2017, but Campaign Against Arms Trade has been granted an appeal, which will be heard in April 2019.

These moves illustrate the ways that the UK government has been forced to expend greater energy in justifying its position, working with the Saudi-led coalition to engage in legitimation work, and devote greater resources to the aid response. Looking forward to 2019, the major milestone for British policy on the horizon is the judicial review appeal. Will the Court of Appeal show greater independence from the government than the High Court? What new justifications will the government roll out? Watch this space.

Anna Stavrianakis is a Senior Lecturer in International Relations at the University of Sussex.

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Event Recap, Resources and Recommendations -- War in Ukraine and Impact on Arms Trade and Militarism: South East Europe and the Black Sea Region (August 18, 2022)

U.S. Arms Sales Restraint in 2022?

Comments - U.S. Arms Exports Under Congressional Notification Thresholds

Judicial Review redux in the UK over sales to Saudi Arabia and Coalition

Early Actions to Watch for a More Responsible U.S. Arms Trade Policy

Taking Stock and Looking Ahead for Responsible Policies on U.S. Arms Sales

Looking ahead – the arms trade on trial in the UK and The Hague

Arms Trade Issues Should See Center Stage in 2020 US Election

Improved Prospects for U.S. Arms Sales Restraint? Look to Congress

Will reckless, risky and wrong-headed UK support for the Saudi-led coalition in Yemen continue?

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